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The Lexpert CCCA Corporate Counsel Directory & Yearbook is a joint endeavour of the Canadian Corporate Counsel Association and Lexpert. It provides the most extensive listing of corporate counsel in Canada.

Ontario case cited in B.C. decision to deny access to videos

A recent decision in an Ontario murder trial has been cited as authority to deny the public access to a videotape exhibit at a high-profile civil trial in British Columbia involving a dispute over the ownership of the Vancouver Canucks hockey team.

B.C. Supreme Court Justice Catherine Wedge agreed with a ruling this spring by Ontario Superior Court Justice Edwin Minden in the Daniel Sylvester murder trial that the open court principle does not guarantee the media access to an exhibit in the same format as it is entered in court.

The Supreme Court of Canada has repeatedly stated that the presumption is in favour of access to exhibits filed in court proceedings. In its 2005 ruling in Toronto Star Newspapers, the Supreme Court said it must be shown that there would be a “serious risk to the administration of justice,” to deny a request for access.

The July 4 ruling by Wedge, however, is the latest in a string of decisions in superior courts across Canada where judges have concluded there are grounds to apply the narrow exception to the rule in favour of access.

The video exhibit in the B.C. case is a media training video prepared for Francesco Aquilini, after he bought a 50-per-cent share in the Canucks and GM Place in fall 2004.

Aquilini retained a media-consulting firm to prepare him for a news conference where he might be asked questions about his former association with Tom Gaglardi and Ryan Beedie, in a bid to purchase the NHL team. (Gaglardi and Beedie are the plaintiffs in the civil action).

Two excerpts from the training video were admitted as evidence by Wedge and entered as an exhibit at the trial.

Wedge said she was required to balance the privacy rights of the wealthy Vancouver businessman against the open courts principle. She concluded that the principle would not “be in any way impaired,” if media were permitted to view the exhibit in court and provided with a transcript.

Lorne Honickman, a lawyer at McCague Peacock Borlack McInnis Lloyd LLP in Toronto, who frequently acts for the media, says he is troubled by the ruling.

“It is somewhat alarming to see that once again the constitutional foundation underlying the presumption of public accessibility and the open court principle has been trumped,” says Honickman. “The fact that this is a civil trial is of no consequence. These priniciples must be applied with the same constitutional force.

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